MANU/MH/2904/2014

Equivalent/Neutral Citation: 2015(5)ALLMR202, 2015(4)MhLj473

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Appeal against Order No. 62 of 2014
Decided On: 11.11.2014
Devkisan and Ors. Vs. Mahavir
Hon'ble Judges/Coram:
S.B. Shukre, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Yogesh B. Sawal
For Respondents/Defendant: A.V. Bhide
JUDGMENT
S.B. Shukre, J.
1. Admit. Heard finally by consent of the learned Counsel for the parties.
2 . This is an appeal preferred against order dated 22-7-2013 passed in Misc. Judicial
Case No. 77 of 2012, thereby refusing to restore the appeal that was dismissed in
default on 8-10-2012.
3. The appellant had preferred Regular Civil Appeal No. 80/08 against the judgment and
decree passed in Regular Civil Suit No. 106/2001, which was the suit for recovery of
rent and mesne profits. The appellants and their Counsel were absent on 8-10-2012 and
no adjournment application was also moved and, therefore, the Court dismissed the
appeal in default. An application for restoration of appeal bearing M.J.C. No. 77/12 was
filed by the appellants and that was also rejected on merits by order passed on 22-7-
2013 by the District Judge-I, Khamgaon. The present appeal is preferred against the
said order.
4. Learned Counsel for the appellants submits that it is a cardinal principle of law that
for the mistake of the Advocate, parties should not be made to suffer and the very
purpose of section 5 of the Limitation Act is to advance cause of substantial justice. He
further submits, that this principle of law would require every matter be heard on merits
and be not thrown out on some technical grounds. He submits that the approach
adopted by the learned District Judge is too technical, therefore, it has resulted in
miscarriage of justice. He also submits that if any inconvenience is caused to the other
side, costs can be imposed upon the appellants.
5. Learned Counsel for the respondent submits that the appellants have been sleeping
over their rights for long a period of time and absence of appellants and their Advocate
on 8-10-2012 was not an isolated incident. He submits that roznama of the appeal
would bear testimony to this submission and, therefore, he submits that no case has
been made put by the appellants to interfere with the discretion exercised by the first
Appellate Court.

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6. Upon going though the certified copy of roznama, which is produced on record and
marked as document 'X' for identification, I find that there is substance in the argument
advanced on behalf of the respondent and there is no merit in the argument advanced
on behalf of the appellants. The roznama discloses that the date of 8-10-2012 was not a
single and isolated date when the appellants or their Advocate were absent before the
Court. There were several dates prior to that date when the appeal was fixed for final
hearing and yet on those dates, barring a few, the learned Counsel for the appellants
was absent. The roznama further discloses that the matter was fixed for final hearing on
6-4-2010 on which date both the Counsel for rival parties were present but the matter
could not be heard as the Court was busy. Thereafter, the appeal was fixed for final
hearing on 2-7-2010 and there were at least 15 days, which fell in between; on which
dates the appeal was kept for final hearing; and out of these 15 dates, barring a few
dates, on all the occasions, learned Counsel for the appellants was absent and the
matter was required to be adjourned to 8-10-2012. Even, on 8-10-2012 learned
Counsel for the appellants was absent and even no adjournment application came to be
filed on his behalf, thereby giving sufficient indication of disinterestedness of appellants
to prosecute the appeal. At least, adjournment application could have been filed and if it
was not filed, adequate cause which prevented the appellants from filing such an
application should have been shown. Appellants did not do so.
7. Having regard to the afore-stated background of this case, the attitude displayed by
the appellants and their Counsel in not prosecuting the appeal, in spite of ample
opportunities coming their way, and absence of any sufficient cause, I do not think that
the discretion exercised by the learned District Judge in rejecting the restoration
application can be found to be unfair, arbitrary or unreasonable. Therefore, no
interference with the impugned order is warranted. After all, in such matters, the Court
has also to take into account the rights which accrue in favour of the other side, which
rights are allowed to become final by the appellants owing to their laziness. If the
appellant displays negligent attitude for which no sufficient explanation is given, the
Court cannot disturb the rights which have become final in favour of the other side. This
is one such matter wherein no indulgence deserves to be shown to the appellants at the
cost of disturbing the rights which have accrued and which have become final in favour
of the respondent. In the result, the appeal stands dismissed.
No order as to costs.
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